Maiga Prods. Corp. v Unitrin Auto & Home Ins. Co., 2017 NY Slip Op 50113(U)(App. Term 2d Dept. 2017)
“In papers submitted in support of defendant’s cross motion, it was alleged that defendant had requested that the assignor appear for scheduled EUOs and that, although several EUOs had been rescheduled at the request of the assignor’s attorney, the assignor had ultimately failed to appear at the EUO scheduled on August 28, 2012, which EUO had not been rescheduled. Defendant’s papers further stated that defendant had subsequently mailed a denial of claim form to plaintiff which denied plaintiff’s claim on the ground that its assignor had failed to appear at EUOs. Inasmuch as defendant’s papers did not establish that plaintiff’s assignor had failed to appear for two duly scheduled EUOs, the Civil Court correctly found that defendant had failed to establish its entitlement to summary judgment dismissing the complaint”
That word: “reschedule”. I never had so much trepidation when I encountered tht word until recently. Assume EIP attorney states that client cannot attend and continues to make this statement. At what point can that carrier say it is not on consent? That fact pattern is looming. And assuming that a carrier has the right state the reschedule is not on consent (which the carrier does I think in light of Stracar), does the failure to give consent contain a reasonableness prong? In IDS Prop. Cas. Ins. Co. v. Stracar Med. Servs., P.C., 116 AD3d 1005 (2d Dept. 2014), where the Court stated: “In view of the assignees’ unexcused and willful failure to comply with the demands for examinations under oath, and the lack of evidence of partial performance, the Supreme Court, upon renewal, should have unconditionally awarded summary judgment to the plaintiff .”
Ponder that.
